Judge denies motion to dismiss plea to first degree murder

Judge Jan Satterfield denied Lyndsey Giovinazzo's motion to withdraw her plea of guilty to first degree murder in the death of Augusta resident Loyce Cody.

Comment

By Julie Clements

Butler County Times Gazette

By Julie Clements

Posted Nov. 27, 2012 at 4:08 PM
Updated Nov 29, 2012 at 11:24 AM

By Julie Clements

Posted Nov. 27, 2012 at 4:08 PM
Updated Nov 29, 2012 at 11:24 AM

El Dorado, Kan.

Judge Jan Satterfield denied Lyndsey Giovinazzo's motion to withdraw her plea of guilty to first degree murder in the death of Augusta resident Loyce Cody.

The decision was made after hearing testimony from the defendant, as well as her former attorney, Michael Brown, and arguments from her current attorney, Nika Cummings, and County Attorney Darrin Devinney during a hearing Tuesday in Butler County District Court.

"Her plea at the time it was given was knowingly, voluntarily and intelligently made," said Judge Jan Satterfield. "I believe that she knew what she was bargaining for when she entered her plea and there is no evidence before me that the state has altered what their recommendation is at the time of sentencing in this case.

"The court does not find that good cause has been shown in this particular case to the degree and extent that the defendant should be allowed to withdraw her plea at this juncture."

Prior to the ruling being made, arguments were made by Giovinazzo's attorney.

Cummings pointed out that the defendant believed she was misled in taking her plea in that she was not explained the difference between 25 to life versus a hard 50 sentence.

She did not believe defense council should plead someone to first degree murder because it is a life sentence.

Giovinazzo also took the stand.

She said when she gets nervous she tends not to focus.

"I remember when I first met Mr. Brown, he introduced himself and then we started talking and I was trying to explain my side of the story and he looked at his watch and was like 'well, it's time for lunch, I will see you next time,'" Giovinazzo said.

She said she never tried to explain her side of the story again because every time she tried to bring it up he would start talking about something else.

Giovinazzo claimed there were things she said in her confession that were not true, but she said Brown told her it wouldn't matter because she gave her confession willingly and competently. She also said she didn't know she could come to court and tell her side of the story at a trial.

Giovinazzo also said she did not feel comfortable talking to Brown.

As for the sentence, she said he told her she would get the hard 50 if she went to trial, although he didn't explain the mitigating or aggravating circumstances.

She said she felt she didn't have any choice of pleading if she wanted to do less than 50 years.

She went on to say Brown did tell her at a trial she could either testify or not, then the prosecuting attorney would state its case and the jury would make a decision.

Page 2 of 6 - When asked about her letters for a new attorney, she said, "I just didn't feel like I could talk to him and he didn't listen to me. You can't really defend someone if you don't talk to them."

She said she changed her mind after talking to Brown because he made her feel guilty for wanting to fire him.

On the instance of the second letter, she said he made her feel hopeless, which was why she withdrew that request.

"I didn't know I was allowed to speak out," she said of why she didn't tell the court she felt hopeless. "I thought my attorney was supposed to speak for me. I've never been in trouble; I don't know how it works."

She said she didn't really understand what the plea bargain said. She said it was hard for her to read legal documents because she doesn't understand most of the words in it.

On the day she entered her plea, she also said she didn't understand all of the questions from the court, although she couldn't specify what she didn't understand. She said if she doesn't understand a question she will listen to how the person is asking it and decide if they want a yes or no answer based on their tone because she doesn't feel comfortable asking questions.

Devinney then cross examined Giovinazzo.

She said she did not feel comfortable talking to him or the judge.

In regards to the incident at lunch time, he asked if Brown had been indicating it was time for her lunch at the jail, but she said she still had about 30 minutes.

"Do you know if anyone told him it was his time limit and they had to prepare the inmates for lunch?" he asked.

She said she did not.

She said she met with Brown about 10 times. She also agreed she had a copy of the plea agreement for about 11 days before the final plea was made to the court.

Devinney went on to question if she could read and write.

"I can read everything," she said. "I just don't understand some things."

"How does that make you different from any other person on the planet?" Devinney asked.

"I'm not saying that it does," she said.

Devinney also asked Giovinazzo if she remembered answering questions during the plea hearing and she said she did, but she said she didn't feel she had any choice at that point. Other questions, such as if she was of sound mind and good judgement or if there were any concepts in the agreement she didn't understand she did not remember being asked.

"Were there any concepts you didn't understand?" Devinney asked.

Page 3 of 6 - "I don't remember if there was or not," she said. "I haven't read it in a long time."

She said she released all of her paperwork to her grandmother and when she asked her attorney to send the information again he was going to charge her.

"Were you telling the truth on the day of the plea hearing at all?" Devinney asked.

"It's not that I wasn't telling the truth," she said. "I was giving the answer that I needed to for her (the judge) to accept my plea agreement."

But she said she was telling the truth now because she was under oath.

Satterfield then asked her a couple of questions.

She asked Giovinazzo if she had a chance to look at the transcript of the plea hearing, to which Giovinazzo said she had.

Satterfield pointed out she was asked if she may have to testify against the co-defendant and she had to answer honestly, which she said she remembered, but she said Brown told her she would not have to testify against the co-defendant.

"I made it very clear to the contrary that you may be required to testify and you understood that?" Satterfield asked if she remembered and Giovinazzo said yes.

Satterfield also pointed out she had asked if the plea had been explained to her and asked her numerous times if she was saying she did want to plead to first degree murder, as well as asking if she had any questions.

Giovinazzo said she knew she could answer the questions yes or no and didn't remember being asked if she had any questions, although according to the transcript she had said she did understand that.

"What right is it that you now have that you believe you now understand that you didn't understand then?" Satterfield asked.

"I don't know," Giovinazzo said.

Satterfield also pointed out she told her she could impose a hard 50 sentence if that is what the court decided to do, but Giovinazzo didn't remember that.

After Giovinazzo's testimony, Brown was called to the stand.

He reviewed his meetings with Giovinazzo, of which he said there were about 10, as well as numerous letters he sent her. He also said he went over her taped confession with her during one of their meetings and talked about filling out a suppression motion at the same time and also sent correspondence about it.

"The first time I meet with client is to explain to them the decisions they have to make in a felony prosecution," he said. "I explain burden of proof for the preliminary hearing. The second decision is the plea in the case. The third decision is if to take it to jury trial; and the fourth decision is if to testify on their own behalf. Fifth is if a conviction if they elect to appeal that decision."

Page 4 of 6 - He does this through a letter, then meets with them. He said he also obtained some information about her. He said the letter was the same one he has been sending to clients since 1995.

"In meetings with Lyndsey did you ever have concerns about her ability to understand the legal concepts discussed or the proceedings?" Devinney asked.

"No, I did not have any concerns because she did not express any concerns to me. I always end every conference with do you have any questions you want to ask me."

He described Giovinazzo as quiet.

He said sometimes when he met with her she wanted a trial and other times she did not.

Brown also said he had been a criminal defense attorney for 38 years and has tried 220 plus jury trials.

"I wouldn't have any problems trying the case," Brown said. "We discussed problems as far as taking it to trial and evidence against her. She knew what the case consisted of."

When asked about the 25 to life sentence, Brown said eventually parole would have to be granted. By his own experience, his clients have met parole and been released prior to the end of their natural life.

When asked why he didn't wait for the DNA results from the scrapings from under Cody's fingernails, he said with her confession and the videos of Giovinazzo and the co-defendant Jacob Hoyt in the convenience store and car chase, he didn't think that would help her.

Brown said there was one conversation that may have made her feel bad when she requested a second opinion and he asked if she wanted him to bring in someone else to tell her the same thing.

He also said he had no reason to believe she was mentally ill.

He also explained about charging for the paperwork.

"When she asked for the copies of all of the paperwork, I said I would charge $250 because it was at the end of the case and she had been given copies of all of the pertinent papers and information," he said.

He also said he did pursue a plea agreement other than 25 to life to try to get her offense back on the grid, but no agreement was made. In addition, he said he went over the plea agreement with Giovinazzo page by page.

In closing arguments, Cummings asked the court to grant their motion to allow her client to withdraw her plea. She argued the competency of Brown.

"I would say in this case the plea was premature," she said.

She also said Giovinazzo was misled on the sentences she may get.

"It is clear from what Mr. Brown stated when he testified that he did not believe Miss Giovinazzo," Cummings said. "He never took what she tried to tell him and tried to investigate that to see if it could be accurate. She just didn't get a fair shake in this case to try to explain what she wanted to to her attorney."

Page 5 of 6 - Devinney cited several cases where clients plead without all of the evidence being in and cases where defendants pleaded to life sentences.

As for ineffective assistance of counsel, Devinney cited further cases where assistance fell below standard reasonableness, but the pleas were upheld.

"Looking at the claims, looking at the facts, it would appear Miss Giovinazzo wants to withdraw her plea," Devinney said. "She wants to do it on the basis of saying her attorney was competent. There is no evidence he didn't adequately represent her. He only represented her for six months and met with her 10 times."

He also pointed out that Giovinazzo was responsive and she didn't have to respond in a certain way.

Before giving her ruling, Satterfield looked at the cases cited in the closing arguments.

"Her attorney gave her the opportunity to ask questions," Satterfield said. "She again in open court confirmed her understanding of the document, the rights she was giving up and her decision to plead guilty. Even in her testimony today, she has made it clear today was one of her desires was she wanted to see some opportunity for release.

"I think that the transcript reflects clearly our discussion that she would receive a minimum of 25 years to life. There are no guarantees. I think she understood when she entered the plea that she could spend the rest of her natural life in prison."

She also said she couldn't find that Brown failed to provide competent counsel.

Sentencing for Giovinazzo was set for Dec. 13.

The co-defendant, Hoyt, is set to begin on Dec. 10, although that may change.

Timeline

A review of the hearings and events for Lyndsey Giovinazzo:

Dec. 7, 2011: Giovinazzo made her first appearance

Dec. 20, 2011: Michael Brown was appointed as her attorney

April 11: Preliminary hearing held and Giovinazzo was bound over

March 15: Judge Mike Ward received written correspondence from the defendant asking for a new lawyer

March 30: Hearing at which time the defendant withdrew her request for a new lawyer and indicated she was satisfied with her attorney

May 1: Arraignment and jury trial set for July 24

June 27: Pretrial motions hearing held and a suppression hearing set for July 13

July 2: The court received a letter from the defendant indicating a desire for a new attorney; a hearing was held and she again withdrew her request for a new attorney; rather indicating she wanted to plea but it had to be postponed for proper notification of family members

July 13: Suppression motion hearing, at which time Giovinazzo entered a plea and the court found the defendant guilty of first degree murder

July 27: The defendant filed a pro se motion to withdraw her plea

Page 6 of 6 - Sept. 4: The court allowed Michael Brown to withdraw as her attorney and sentencing scheduled for Sept. 17

Court appoints new council and the case was continued several times by the defense, with it being continued until Nov. 27